Psion: Intel has “unclean hands,” we demand $1.2 Billion

Psion has countersued Intel, defending its claim to the netbook trademark, …

The heat under the netbook trademark lawsuit has just been turned up another notch. Psion, owner of the trademark to the word "netbook" and target of last week's suit by Intel for the trademark's dismissal, has countersued in Northern California's Federal District Court. The countersuit steps up the rhetoric against Intel, accusing Santa Clara of having "unclean hands" due to its "unauthorized...willful and malicious" marketing of netbook-branded products "with full knowledge that it has no right to use" the trademark. This is exactly the strategy Ars last week�predicted Psion would take. Psion has demanded a jury trial.

Psion's new filing, which matches Intel's bellicosity measure for measure, also�goes toe to toe with Intel on legal matters of substance to the case, alleges a great deal of malicious wrongdoing, and demands a jury trial to decide the awarding of�statutory damages which may total well over a billion dollars, with punitive damages beside.� This is getting big.

Some background: the netBook went off the market in 2003, Intel revived the term in 2008

The fight centers on Psion's trademark on the name "netbook," which was granted in connection with Psion's ARM-based "netBook" computer launched in 1999, which Psion, as near as we can tell, stopped selling in 2003. The netBook was a netbook in the modern sense, in most ways, but the technology wasn't mature and sales were poor. Psion renewed the trademark in 2006, after the netBook had been taken off the market (though accessories were still being sold). The netbook then market settled into a long, peaceful hiatus.

In 2008, as the netbook market awoke from its slumbers, Intel brought the term back into use. As the netbook market took off, with 14-18 million sales in 2008, OEMs, consumers, and especially the press began looking for a catchphrase to shorten their headlines, and Intel slipped the term "netbook" conveniently into the gap.

In December 2008, Psion began sending cease-and-desist notices to a wide variety of OEMs and other firms. They were mostly ignored, until three weeks ago Google announced it was banning the trademarked term from adsense advertisements. This set off a firestorm of controversy. A grassroots organization called Save The Netbooks emerged, and planned to sue until Dell preempted them. Last week, Intel joined the fight with a flame-infested broadside accusing Psion of fraud and demanding immediate dismissal of the trademark.

Now, Psion has countersued, with an eighteen-page filing entitled "Answer, Affirmative Defenses and Counterclaims." Let's take a look at the response.

A point-by-point response, usenet style

Last week, I said the spectacle had "similarities to a flame war with lawyers," and Psion has escalated the similarities. Every point which could concievably be disputed is disputed in totality. Psion even disputes the Northern District's "personal jurisdiction" over its dealings. This won't be settled nicely.

Intel points out that for the first six months of the alleged infringement, "Psion did not engage in a campaign or any other visible effort to educate anyone, much less the consuming public, about its purported rights" to the term, and instead "sat back idly as netbook evolved as a generic term." It's too late, Intel alleges, for Psion to make a fuss about it now. Intel paints a grim picture of an opportunistic Psion seeking to cash in by demanding royalties on the term after Intel had done the hard work of promoting it.

Against this, Psion says only that it denies the effort was belated, denies that the consuming public has adopted netbook as a generic term, and denies all the other allegations of the relevant four paragraphs. Psion completely neglects to provide any reasoning behind their denial.

Affirmative Defense

After disputing every possible point of Intel's filing, Psion unveils its Affirmative Defenses. They claim first that Intel "has failed to state a claim upon which relief can be granted," and moreover that Intel's "Complaint, and each purported claim for relief contained therein, is barred by reason of [Intel's] own unclean hands."

Psion charges that Intel sold products with marketing using the term "netbook," and that the chipmaker "encouraged, aided, and abetter other manufacturers and retailers" to do the same," "caused...severe and irreparable harm to Psion," "acted willfully and maliciously...[to decieve] the public as to an affiliation, connection, or association of Intel with Psion," and "has been...unjustly enriched at the expense of Psion" due to its infringement.

It's possible to see how a court might rule that Intel willfully began using the name netbook for commercial purposes well before the genericization of the term, and that the genericization is a direct result of Intel's action. And Atom sales might suggest to the bench that Intel is being enriched by use of the term. But Intel may argue that it didn't act to "trade on the tremendous commercial value...of the netbook mark," because the term's tremendous value did not emerge until after the genericization. We can also expect Intel to laugh at the notion that it sought to create the impression of "an affiliation, connection or association of Intel with Psion." In fact, it's more likely that the opposite is true: Intel wants Psion swept quietly under the rug.

Intel had claimed that the netBook brand was dead at the time of Psion's November 2006 trademark renewal. To refute this claim, and to reinforce its allegation of damage by Intel, Psion offers a table of netBook associated revenue by year:

Year

Sales (USD)

1999

62800

2000

7874

2001

7335

2002

30566

2003

24503

2004

780096

2005

1709433

2006

2073207

2007

586680

2008

60900

2009

13650

These numbers are somewhat suspect for two reasons. First, Psion claims that peak netBook revenue occurred in 2006, three years after the netBook Pro went off the market and the same year Psion renewed its trademark. How could users buy two million dollars of accessories for only $135,000 worth of netBooks? The timing is off.

Second, the numbers seem too small. The netBook sold for $1300, so Psion's $5.35 million in total sales over the last ten years would amount to a mere 4100 netbooks. This seems too low, even for a fizzled product, especially considering the relative success of the Psion 3 and Psion 5 in the 90s.

If this constitutes commercial use of the trademark, it's ludicrously small next to the size of the modern netbook market. In 2008, eighteen million netbooks sold at an average price close to $300 generated gross sales of almost $6 billion, some thousand times Psion's entire revenus from netBook products and one hundred thousand times Psion's 2008 netBook revenue. If the netbook market were a football field, Psion's 2008 market share would be about the size of a netbook.

But size may not matter. If the court rules that Psion had a legitimate commercial interest in the term, which was specific and not generic, at the time, of their renewal, Intel could be in a bind.

Psion demands $1.2 Billion plus punitive damages, jury trial

For these alleged offenses, Psion demands the court rule in its favor, order Intel and everyone else to stop infringing, to destroy all infringing literature and advertising, and to give Psion the domain name www.netbook.com.

Psion also demands a veritable mountain of cash. Psion has asked the judge to order Intel to compensate Psion for treble "all damages it has sustained as a result of Intel’s infringement, unfair competition, unfair trade practices and unjust enrichment," including all "Intel’s profits resulting from its infringement, unfair competition and unfair trade practices," and punitive damages above and beyond this.

Broadly interpreted, Psion's demands are sharp. Given the number of netbooks shipped, the cost of Menlow and Atom, and Intel's likely margin on Atom, it would be difficult to envision its netbook profits coming to less than $400 million. Trebled, that's $1.2 Billion, which figure may escalate if punitive damages are assessed.

If Intel wasn't deadly serious about this before, they should be now. If it's ruled that the term was legitimately protected through all of that time, Intel and everyone else may be enjoined from using it ever again. In light of the boldness of Intel's use of the term, if it's ruled to be an infringement, it's possible the court may give Psion a good chunk of what they ask for, even a moderate fraction of which is a lot of money, especially in the midst of a semiconductor market meltdown.

To process all this, Psion demands a jury trial. Psion seems to think it can hold the narrative to its tale of a small firm bullied by a large one, for long enough to make off with a huge pile of cash from a lay jury. After this is said and done, Psion may try to get additional revenue by raking in royalty agreements for the use of the term.

In the face of such a threat, Intel may decide to solve the problem by buying Psion and shutting it down. Indeed, this may be precisely what Psion is angling for by pressing so hard on the suit.

Anyway, this is definitely starting to get ugly. We're reserving judgment on whether Intel should pay for their introduction of the term - that's for a jury to decide now and our primary concern is protecting consumer choice.

That being said, IF Psion had a previous product out by the name, and was still engaging in trade (by selling accessories) on that product, I don't see how intel has a case since it (by its previous association with Psion) obviously 'knew' that the name was trademarked and in use.

...

Just call the things mini-sub-notes or whatever. Intel's fault, their bad for using the term.

As for an argument that 'netbook''s genericiztion preceeded intel's marketing of atom based (and celeron M derivitive) machines? (Ie, the Eee 701)?

That's laughable. No one used that term before those products came out and were marketed as such.

As long as the products still coming out, and people keep buying them, consumer choice will remain. Hell, if xscale/ARM based 'netbooks' came out, there'd be even MORE market choice.

Irrespective of whether Intel ends up paying for it, if the trademark is upheld then it will be bad for pretty much everyone but Psion (who will have essentially won the lottery). It may raise some interesting questions about Intel's potential liability for leading the rest of us up the garden path too.

If nothing else it's hard to imagine that the genericide claim won't stick....

Well it would certainly be bad for Intel. I don't see that the rest of us would have really lost anything other than another generic marketing buzzword.

I realize that at this point the instinctive reaction to news like this is to denounce the one party as litigious hacks, but Psion has a much better claim here than the patent trolls. For one thing, the time frame is short - 2006 wasn't that long ago. This isn't like a submarine patent.

I was going to add that they're a small company and that this would greatly impact their business, but I don't really know. Wikipedia says that they're making money from something, somewhere. Their line of ultraportables is probably the only thing that the public at large is familiar with, however, so I could certainly see how this could have an impact on them.

Of course the amount that they're asking for is ridiculous, but they'll probably take a settlement.

Originally posted by guises:I realize that at this point the instinctive reaction to news like this is to denounce the one party as litigious hacks, but Psion has a much better claim here than the patent trolls. For one thing, the time frame is short - 2006 wasn't that long ago. This isn't like a submarine patent.

Trademarks aren't like patents - generally they last forever as long as renewal fees are paid and the trademark is used. In this case the fact that the term has been trademarked since 1996 (2006 was a renewal) helps their claim.

Perhaps justice would be best served by giving Intel a slap on the wrist... at worst treble Psion's entire 'netBook' earnings over the product line's entire 11 year history ($15m)... and invalidating the trademark.

Given Psion's trademark was more like a minefield in the intellectual property wasteland than a valuable asset for the taking (really, how much of the value of this multi-billion dollar industry was based on the work Psion did building the brand) anything else seems unjust. Upholding the trademark (except against Intel who are probably the only ones against which a claim of infringement could be scratched together) would be particularly unjust to pretty much everyone but Psion.

The "it's now generic" argument is not invalid, but given the time scales in question (date from which it became commonly used (mid 2008)to the date when Psion started protecting it's trademark(end 2008)) it's not actually very relevant.

quote:

Originally posted by Save the Netbooks:Upholding the trademark (except against Intel who are probably the only ones against which a claim of infringement could be scratched together) ...

A claim of infringement can be made against any person who uses a registered trademark, for the types of products/services in relation to which the trademark was registered, without the consent of the owner of the registered trademark.

quote:

... and invalidating the trademark.

Your argument for invalidating the trademark is that allowing it to remain would be unjust?

The trade mark registration system confers a legal monopoly on the use of the trade mark.

It doesn't matter who uses the trademark - Psion is the only entity with legal rights.

@xand: People keep referring to time with respect to genericide which fails to take into account that the propagation speed of the media has exponentially increased since the invention of trademarks. Previously one would build a brand by word of mouth and physical advertising (e.g. newspapers, posters). Then there was radio, television and now Internet. Indeed an entire product lifecycle can take place in the time it takes to register a trademark (many months). This is indicative of a larger problem and is really just the tip of the iceberg.

If a mark can no longer function as a trademark (that is, be a source identifier) then it cannot *be* a trademark, pure and simple. IANAL but if I understand well one test would be a random survey. Normally the majority of the participants (or at least those aware of the mark) would be able to identify the source - e.g. that iPhone is a mobile phone made by Apple. In this case you would be lucky to find *anyone* who still thought of netbooks as a Psion product (literally 1 in a million if Psion's numbers, our calculations and analyst estimates are right).

The difference between Psion filing against Intel and Psion filing against anyone else is that when Intel started using the term (they claim) it was their trademark - anyone else would have a strong genericide defense. Did you spot the conspicuous absense of an explanation for *how* "netbook" became generic in Intel's filing?

Anyone can make a claim against anyone for trademark infringement, even without having registered the trademark first. Whether that claim will be enforceable on the other hand is a matter for the courts (and in this case, a jury) to decide.

As a former small-business owner who built a brand behind a trademarked term, I'm firmly in Psion's corner here. What's apparently happened to them was my worst nightmare -- someone bigger swooping in and stealing all my hard work to cash in on it, then ignoring my attempts to get them to stop.

This is precisely why the trademark system exists today. SaveTheNetbooks' position is rather misguided IMHO.

I really don't see how the outcome of this case will stop people from using the word netbooks with everything, except maybe Intel or Dell or some other company. Most people will keep using it in regular everyday speech, and there's really nothing that anyone can stop them from doing. It's like trying to stop people from saying Scotch-taping or Xeroxing or Googling, as long as these netbooks are as popular as they are people will keep using that term.

I don't know, I understand why people would back Psion, but it I think the fact that they've waited until the term is completely generic (per random survey) to act stinks. Had they not taken off, would Psion even have done anything? Further, I don't see that they have had any sort of damages due to the now generic term "netbook". Certainly the people still buying accessories were the only ones aware of the original Psion product.

I don't see how they can go after Intel for popularizing the term while they sat back and did nothing while it happened. Certainly not for billions. I don't see how they can sue other parties after marketing/news sources around the world had generalized the term.

Does anyone believe it to be reasonable that it took Psion longer to put together a case than it did for the whole netbook market segment to come to maturity and sell billions? In contrast, Linksys went after the iPhone name right when it was announced, and even settled the case with Apple before the iPhone was even released.

badfrog: I'm assuming that you put in continual effort to reinforce and publicize your trademark.

With Psion, they may be legally in bounds, they also failed to reinforce their trademark with consumers at all. No new product announcements, no cease-and-desist as soon as people started using the term. Instead, they showed up late to the party and raised a fuss.

I also can't quite figure how you calculate damages. Odds are slim that any significant number of EEE/Aspire One/Wind/etc. purchasers would buy a Psion NetBook instead, because they were fundamentally different products. It's unlikely they got a significant edge from some "confusion of association", because little of the market knows who Psion is.

Intel probably also has a reasonable defense in their size-- it is eminently possible that the guys who prepped media kits which said "netbook" all over them never ran them past the guys who had dealings with Psion in the past.

What if I started making and selling phones called "iPhone"? When Apple sues, I could just say "but I already sold 50 million of them, the term is generic by now!". Yeah, that wouldn't go so well in the court.

I think Psion is in the right here. They had a product called "Netbook" and they had a valid trademark on the term. Why exactly wouldn't they be entitled to compensation? Because Intel is bigger and Acer, Asus etc. have sold more "netbooks" than Psion sold theirs?

Is this a case of "might equals right"?

"Netbook" is not a generic term. It is a term used to describe an ultraportable laptop. Just like the system Psion sold under that name. The idea that Intel came up with that name totally independently is pretty damn hard to believe. Even if they did, they should have noticed that "netBook" is a registered trademark of Psion that they used as a name of their subnotebook.

I MIGHT understand it if Psion used the term "netbook" for something totally different kind of product (say, an ebook-reader), and Intel thought that the trademark does not apply, since the products are in different markets. But that's not the case. It's the EXACT SAME MARKET.

Originally posted by Janne:What if I started making and selling phones called "iPhone"? When Apple sues, I could just say "but I already sold 50 million of them, the term is generic by now!". Yeah, that wouldn't go so well in the court.

I think Psion is in the right here. They had a product called "Netbook" and they had a valid trademark on the term. Why exactly wouldn't they be entitled to compensation? Because Intel is bigger and Acer, Asus etc. have sold more "netbooks" than Psion sold theirs?

Is this a case of "might equals right"?

"Netbook" is not a generic term. It is a term used to describe an ultraportable laptop. Just like the system Psion sold under that name. The idea that Intel came up with that name totally independently is pretty damn hard to believe. Even if they did, they should have noticed that "netBook" is a registered trademark of Psion that they used as a name of their subnotebook.

I MIGHT understand it if Psion used the term "netbook" for something totally different kind of product (say, an ebook-reader), and Intel thought that the trademark does not apply, since the products are in different markets. But that's not the case. It's the EXACT SAME MARKET.

Actually, I had just updated my last comment with that thought. When Apple announced the iPhone, they were pretty much immediately contacted by Linksys, who owned the trademark. I want to say it was in January, and the two settled well before the product even released. I have a hard time believing that Apple didn't know about the trademark before they got started, but they were willing to take the chances and make Linksys defend it.

I think any defense for Psion in this regard would be some sort of cease-and-desist letters they can prove they sent, well before the term became popular and the market sold billions. The fact that it's too late for their trademark in the mindshare sense, if not in the legal sense, spells out all too well how late they are and how pointless it is to try to lock down the term now. Even if damages are paid, the trademark is no longer valid.

quote:

"Netbook" is not a generic term. It is a term used to describe an ultraportable laptop.

That's the problem. It describes any number of ultraportable laptops from any number of vendors at this point, in the mind of the people. By your own description it IS generic. Furthermore, Psion doesn't have any current products or plans to release them, so I can't see this at all from a damages perspective. The people buying accessories already know about their product and aren't going to flinch.

I think the key difference was that everyone thought Psion was dead. It's not like the iPhone were Apple is an alive (possibly zombie but semi-alive) company making an active product. I don't think anyone thinks Intel did this intentionally to screw over Psion. They thought they came up with a decent buzzword; its just someone else already had dibs. Still, I don't think that is enough to save them legally. Although I agree with the article; I figured this was just an attempt by Psion to get itself bought out by Intel. Unfortunately I believe they're violating some of SCO's business process patents by going about it this way ...

Just another reason why the concept of imaginary property has to be thrown away.

What was the original Netbook? An ARM powered sub-notebook running EPOC. EPOC is now Symbian, which is owned by Nokia. For me, it wasn't until I actually went to http://www.netbook.com that I realised that netbook wasn't just being said, it is being used officially by Intel. I wonder if PSION didn't even realise what had happened to their trademark till someone like Nokia told them?

What if I started making and selling phones called "iPhone"? When Apple sues, I could just say "but I already sold 50 million of them, the term is generic by now!". Yeah, that wouldn't go so well in the court.

I think Psion is in the right here. They had a product called "Netbook" and they had a valid trademark on the term. Why exactly wouldn't they be entitled to compensation? Because Intel is bigger and Acer, Asus etc. have sold more "netbooks" than Psion sold theirs?

But did anyone ever sell a product by the name "netbook?" Not saying Psion doesn't have any valid position on this, but the example above does not relate to it. In fact, it seems to be the exact opposite. If you sold 50 million "iPhones" that doesn't make the term generic. If multiple companies start selling similar products and everyone starts referring to the entire product class as iPhones, THAT makes the term generic.

Now I do think "netbook" has become a generic term. The big question may come down to timing. Has Psion responded fast enough? Has the term been used in a generic sense long enough? Personally, I think it was stupid of Dell and Intel to sue. The term has been thrown around generically for the better part of a year now, but it seems Psion still had rights to this. Once Psion stated they had an issue with it, Intel and Dell should have let it go. Psion responded to this inside of a year and it's not like Dell or Intel had any product names relying on this. All they had to do was come with some other generic way to describe the product class. If Psion hadn't renewed its trademark just a couple years ago or had sat on this and waiting multiple years to speak up we may be looking at a different situation, but someone at Psion had at least a passing interest in keeping this trademark and defending it.

If this constitutes commercial use of the trademark, it's ludicrously small next to the size of the modern netbook market. In 2008, eighteen million netbooks sold at an average price close to $300 generated gross sales of almost $6 billion, some thousand times Psion's entire revenus from netBook products and one hundred thousand times Psion's 2008 netBook revenue. If the netbook market were a football field, Psion's 2008 market share would be about the size of a netbook.

Sigh... It doesn't matter what Psion's market cap was for their netbook line. You can't take some else's registered trademark and inure it to your benefit without compensating the rights holder. The best thing Psion did was to coin the term 13 years ago and trademark it. It's a non-obvious term for starters.

The article is flawed. It totally misses that the Netbook Pro was released in very late 2003 and that it was the reason for the big sales in 2006. Also, worth noting is that its likely this sales data is US only because its too low in 1999/2000 which were good years in the EU for Psion products.

I'm off to make my Betamax PVR... here's hoping that Sony don't come after me when I've sold a few million units... they would have abandoned that in the 80's right?

If a mark can no longer function as a trademark (that is, be a source identifier) then it cannot *be* a trademark, pure and simple. IANAL but if I understand well one test would be a random survey. Normally the majority of the participants (or at least those aware of the mark) would be able to identify the source - e.g. that iPhone is a mobile phone made by Apple. In this case you would be lucky to find *anyone* who still thought of netbooks as a Psion product (literally 1 in a million if Psion's numbers, our calculations and analyst estimates are right).

Not true. You are making assumptions with out knowing any of the legal theory. Xerox to this day (Kleenex also) are registered trademarks. Do you think google is a generic term? Every one says "I'll google it".

With Psion, they may be legally in bounds, they also failed to reinforce their trademark with consumers at all. No new product announcements, no cease-and-desist as soon as people started using the term. Instead, they showed up late to the party and raised a fuss.

Psion is only required to defend their mark in the time period allowed by law. In legal circles a year is like a day to us normal fold. The courts will most likely see their raising issue with this in a very acceptable time frame.

Just another reason why the concept of imaginary property has to be thrown away.

I believe that every time someone says what you say, a baby dies. The only time I see this ludicrous statement bandied about is when the one saying it is totally devoid of any mental creativity. You must enjoy hitting the keypad at McDonald's.

I have never seen such crap and utter bias in an article on Ars before! Everything that was written in this article to try and show Psion in a negative light is precisely what trademarks are to protect against. Whatever gave you the idea that six (6) months is too late to file cease and desist letter? Is it because Intel said so? Six (6) months is a relatively short time for legal proceedings. The term “netbook” is not a generic term. What else are you going to call a product marketed as such (netbook)? This is not even a slightly ambiguous association like that with the Cisco’s IPhone and Apple’s iPhone. This is the exact same type of product. Intel and Dell are basically fighting for the A$$es. It is a wonder the Microsoft has not joined too. They are just as much a party to this infringement. They have definition published as to what a netbook is to OEMs.It is not as if it was not common knowledge the Psion made a product called a “netbook” and that Intel would not know about said product and that that product is essentially that the same product that Intel is marketing as a ”netbook.” One could even deduce that Intel deliberately use the term because it already existed for the product.This is the exact kind of issue that trademarks are to protect against. Psion has a legitimate trademark and Intel et al infringed it. Now they are going to pay.

Originally posted by Save the Netbooks:Anyone can make a claim against anyone for trademark infringement, even without having registered the trademark first. Whether that claim will be enforceable on the other hand is a matter for the courts (and in this case, a jury) to decide.

I said "registered".

As to the rest of your claims, you're suggesting a change in legal theory, which is nice, but somewhat unrealistic.

Originally posted by Hak Foo:badfrog: I'm assuming that you put in continual effort to reinforce and publicize your trademark.

When you are a small business, most of your effort could (should?) be viewed as publicizing your trademark. In terms of the legal necessities of registering/defending a trademark, based on what I've read, we did everything that Psion appears to have done, short of actually confronting potential infringers -- in my case we were lucky enough to never have encountered any.

quote:

Originally posted by issor:I don't know, I understand why people would back Psion, but it I think the fact that they've waited until the term is completely generic (per random survey) to act stinks.

It's not clear to me at all that they waited until the term was generic before proceeding as you say. Intel apparently started using the term in March 2008, making it an 8-month turnaround for C&D letters, which is blindingly fast for legal matters, and probably allowed for some attempted negotiations -- which if true I think would be the reasonable course of action rather than stampeding directly to corporate lawyer dick-waving.

It's also worth pointing out something that the Ars writeup missed... the USPTO has rejected several attempts to trademark similar terms, including "MSI WIND NETBOOK". I can't find any good citation outside of wikipedia, but here's the TARR entry:

When Apple announced the iPhone, they were pretty much immediately contacted by Linksys, who owned the trademark.

Cisco/Lynksys were a lot smarter than Psion. If they just sat back and waited for the iPhone, then sued, they may have lost. They also, basically had a product that hadn't been advertised for years. If the product no longer is on the market, the trademark is abandoned. Trademarks are all about marketing. I don't know if selling accessories for a discontinued product can be argued as marketing a product. Did they pay to advertise these accessories? I doubt it.

In any case, what Cisco did is pay attention. When word got out that Apple might want to use iPhone as a product name, they immediately started reserecting their old IPHONE product. So by the time the iPhone came out Apple couldn't argue trademark abandonment.

This naming business contrasts of the time when IBM came out with its "PC" or Personal Computer. The Apple, Commodore and TRS-80 computers were often called micro-computers and sometimes home computers, but IBM was determined to promote their product to corporate offices, as well as small (and home) offices, the term "PC" was pushed by a Chaplinesque "Tramp" character in ads. I remember Macintosh users used to be especially adamant that their computers were not PCs, now I commonly read mac users and even Apple employees referring to Macs as PCs. I suppose Intel and others assumed "netbook" was similarly; appealing to the target demographic, and yet generic enough. Internet and information appliance, internet computer, network computer, and even "portable thin client" evoke failed products, not good enough. Maybe they should have gone with "millicomputer?" Has picocomputer been used? Sometimes I almost feel sorry for the marketing guys

But did anyone ever sell a product by the name "netbook?" Not saying Psion doesn't have any valid position on this, but the example above does not relate to it. In fact, it seems to be the exact opposite. If you sold 50 million "iPhones" that doesn't make the term generic. If multiple companies start selling similar products and everyone starts referring to the entire product class as iPhones, THAT makes the term generic.

And why do several companies call their products "netbooks"? Because that's the name Intel used for their reference-design.

It's like I released a new product called "XX37". Then, a bit later some big corporation releases similar product called "XX37", and licenses their design to other companies. Could they then claim that "XX37" is a "generic" term, since there are several companies manufacturing XX37's? No they could not. But that is what basically happened to Psion.

quote:

Now I do think "netbook" has become a generic term.

That still does not mean that it's OK for Intel to rip off Psions trademark.

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The big question may come down to timing. Has Psion responded fast enough?

I think any defense for Psion in this regard would be some sort of cease-and-desist letters they can prove they sent, well before the term became popular and the market sold billions.

So, the fact that Intel and OEM's were quick in releasing the original design, and turning it in to tangible products makes it OK to rip off someone elses trademark? In other words: it''s OK if you do it fast enough?

quote:

Even if damages are paid, the trademark is no longer valid.

Are you a lawyer?

quote:

quote:

"Netbook" is not a generic term. It is a term used to describe an ultraportable laptop.

That's the problem. It describes any number of ultraportable laptops from any number of vendors at this point, in the mind of the people. By your own description it IS generic.

The word "netbook" was registered by Psion, and Psion used it with their line of subnotebooks. It's not a generic term, since it was invented by Psion, and it was registered by Psion and it was used to describe a certain product with specific feature-set.

I think any defense for Psion in this regard would be some sort of cease-and-desist letters they can prove they sent, well before the term became popular and the market sold billions.

So, the fact that Intel and OEM's were quick in releasing the original design, and turning it in to tangible products makes it OK to rip off someone elses trademark? In other words: it''s OK if you do it fast enough?

quote: Even if damages are paid, the trademark is no longer valid.

Are you a lawyer?

quote:

quote: "Netbook" is not a generic term. It is a term used to describe an ultraportable laptop.

That's the problem. It describes any number of ultraportable laptops from any number of vendors at this point, in the mind of the people. By your own description it IS generic.

The word "netbook" was registered by Psion, and Psion used it with their line of subnotebooks. It's not a generic term, since it was invented by Psion, and it was registered by Psion and it was used to describe a certain product with specific feature-set.

I would stop trying to point out the obvious. Trust me they will still be scratching their heads if this goes to court and Psion wins. If you don't get 'it' now, you never will.

The word "netbook" was registered by Psion, and Psion used it with their line of subnotebooks. It's not a generic term, since it was invented by Psion, and it was registered by Psion and it was used to describe a certain product with specific feature-set.

Trademarks are not patents. 'Inventing' a term does not give you ownership. They exist to allow you to identify your product uniquely and avoid marketing confusion. If you don't sell the product, you lose the trademark.

Show me this Psion netbook. Where can I buy it? I can't. Check their website. See any netbooks? It hasn't existed for at least three years. The trademark was abandoned. The only reason that the trademark office didn't declare it abandoned is that Psion claimed that they still had netbook products. This is the source of Dell's fraud charges.

So, the fact that Intel and OEM's were quick in releasing the original design, and turning it in to tangible products makes it OK to rip off someone elses trademark? In other words: it''s OK if you do it fast enough?

quote:

When we talk of legalese, they have acted pretty darn fast.

By the same token, do we base it on when the trademark holder began paying attention? I give an example of pretty much immediate turnaround regarding trademark infringement with Linksys/iPhone (practically the day of the iPhone announcement), and agree that if Psion can prove that they did the same that it would validate their case, and all I get in return is 'well, in terms of legal proceedings, Psion was pretty fast in responding'. Well, your opinion on 'how fast is fast' is just as good as mine, although it would be nice to see a counter example. It doesn't take a month to put out a cease-and-desist, and I'm not saying the didn't do it. Furthermore, I doubt the march '08 date. The Eee has been around longer, and it was referred to as a netbook by the media even during early reviews.

quote:

Are you a lawyer?

No, but you take my quote out of context. The point I had made in the paragraph was that the term netbook is now useless as an identifier of Psion's product. Regardless of how the legal proceedings turn out, the damage is done. If you ask any techie on the street what a netbook is, they're not going to identify it as a Psion product.

quote:

The word "netbook" was registered by Psion, and Psion used it with their line of subnotebooks. It's not a generic term, since it was invented by Psion, and it was registered by Psion and it was used to describe a certain product with specific feature-set.

See above. We all know it was registered, I don't see how that makes a counterpoint to the fact that the term is generic now.